On September 30, 2021, the Forum launched a new resource page for sharing an understanding of law and practices, case studies, potential research avenues and a variety of recommendations related to arms exports that are below Congressional notification thresholds (or simply not required). We welcome additional information, suggestions, and commentary here.
It seems like we’ve been here before. This year, the Campaign Against Arms Trade (CAAT) hopes to take the UK Government to court, seeking a Judicial Review over its decision last July to continue arms sales to Saudi Arabia and its coalition allies in the war in Yemen, in spite of the devastating human toll exacted by that conflict, and the overwhelming evidence of gross and repeated violations of International Humanitarian Law (IHL) by the Coalition.
Didn’t CAAT just win a case like this a year or so ago? Yes, indeed.
The story so far: In June 2019, the Court of Appeal, overturning a previous High Court decision, ruled that the process by which the government made decisions on export licences to Saudi Arabia for use in Yemen was “irrational and unlawful”. Specifically, Criterion 2c of the government’s Consolidated Criteria on arms exports states that an export licence shall be refused if there is a “clear risk” that the equipment “might be used” for serious violations of IHL. Yet, the government had not even attempted an assessment of past patterns of violations of IHL by Saudi Arabia and the Coalition. Instead, it had relied on its ongoing engagement with and training of the Saudi government and military to conclude there was no “clear risk”.
The Court of Appeal rejected this absurd position, that a previous record of violations was irrelevant to an assessment of future risk, and the government had to stop issuing new licences to Coalition states for possible use in Yemen, and to retake all past licencing decisions on a lawful basis. (However, existing licences, including indefinite Open General licences, were not cancelled, allowing BAE Systems’ extensive support for the Saudi Air Force to continue unabated).
A year later, in July 2020, the government announced that it had completed its review, and concluded that all was well, there were only a “small number” of possible violations of IHL among all the hundreds of incidents assessed, and that these were “isolated incidents” that did not constitute any “pattern”. Therefore, there was indeed no “clear risk” of future violations, and that arms sales could continue without any concern for the potential civilian toll this might exact.
It is this latest decision that CAAT is challenging. The idea that there have only been a “small number” of violations of IHL flies in the face of a huge body of evidence from UN experts and Yemeni and international NGOs. These organisations have used highly rigorous methodologies and sources, and have access to on-the-ground witnesses, which the UK government does not. The evidence includes repeated bombings of residential areas, schools, hospitals, market places, agricultural targets, and many others, usually with no evidence of any nearby military target . According to the Yemen Data Project, almost a third of the thousands of Coalition air strikes since the bombing began in 2015 have struck civilian targets. The “patterns” of violations are plain to see.
The government have provided only the barest outline of how they have reached these, on the face of it, absurd conclusions. They have not said what constitutes a “small number” of cases, or what they mean by a “pattern”, only that the incidents occurred “...at different times, in different circumstances and for different reasons”.
The next stage of this saga – which started with CAAT’s initial application to the High Court in 2016 – is for CAAT to seek permission for a new Judicial Review - “JR2” - of the government’s review of licencing in response to CAAT’s victory in the original Judicial Review. This starts again with the High Court, and could yet go all the way to the Supreme Court. (For those not familiar with the UK court hierarchy, check this). While the full Grounds of CAAT’s application are subject to legal confidentiality, the basic premises are straightforward:
1) We challenge the conclusion that there are only a “small number” of cases of violations of IHL, based on the huge volume of evidence above.
2) We likewise challenge the conclusion that there is no “pattern” of violations.
3) We argue that, even if there were no “pattern”, this would not be sufficient to conclude that there is no clear risk of future violations. Even a single incident could constitute a serious violation of IHL, and there can very well be a risk of further “isolated” incidents even so.
Since we know so little about the government’s methodology, or even the details of their conclusions, which they say must be kept secret for reasons of national security, we have no idea what evidence the government may or may not have to support its conclusions. If we are granted permission for JR2, most of this evidence will have to be heard in Closed session, where CAAT will be represented by security-cleared Special Advocates, who cannot disclose the content of the sessions to CAAT or our regular lawyers.
We do not know, therefore, what secret evidence the government might bring to these closed sessions in an attempt to justify their conclusions. But we find it hard to believe that there is anything that could reasonably gainsay the vast weight of evidence from so many credible and respected sources.
The way it appears to us is that, whatever the evidence, and whatever courts have said about previous decision-making processes, the government is determined to find a way to interpret things that allow them to maintain its relationship with the UK’s overwhelmingly largest arms customer, Saudi Arabia, whatever mental and legal gymnastics this may require.
We hope that the courts will exhibit similar scepticism. The government must respond to our Grounds for Judicial Review by January 22nd, after which the High Court will decide if, on the basis of these submissions, we have a case. If not, we may still seek a hearing to decide if the case may proceed. If JR2 does get the go-ahead, it will be months yet before it comes to court.
The case, as they say, continues.
Sam Perlo-Freeman is Research Coordinator at the Campaign Against Arms Trade.
We should know almost immediately if the next U.S. administration will take a more responsible approach to the arms trade. That's because a 30-day Congressional review period on the sale of 7500 precision-guided munitions to Saudi Arabia will end just after the expected January 20 inauguration of the next President. At that point, the new Biden administration would be able to issue licenses for the sale (unless Congress quickly takes blocking actions before then). If Biden keeps to expectations, he will not issue those licenses. That would be consistent with his October 2 pledge:
Under a Biden-Harris administration, we will reassess our relationship with the Kingdom, end U.S. support for Saudi Arabia’s war in Yemen, and make sure America does not check its values at the door to sell arms or buy oil.
If Biden truly wants to uphold values and make U.S. weapons recipients accountable for their actions, his administration could also take steps to slow and suspend major weapons sales to the United Arab Emirates. Less than a month ago, nearly all the Democrats in the Senate made clear their opposition to much of a $23 billion arms package to Abu Dhabi that the Trump administration is attempting to rush forward in its closing days. The UAE, which remains a key partner in the Saudi-UAE coalition in Yemen and is violating the UN arms embargo on Libya, simply should not be receiving U.S. arms at this time.
At present, there is not a clear indication from the incoming President on what he will do with these time-sensitive sales. Whether any of the necessary letters of offer and acceptance (LOAs) have been signed with the UAE that would put contracts in place is not clear, despite Trump administration efforts to move ahead. If not, Biden can delay concluding them. If some LOAs are signed, he can also hold off on delivery, especially for armed drones, precision-guided and other munitions that could be transferred most quickly. While the Abraham Accords offer great promise for improving regional relations in the Middle East, the reward for the accords should be peace and a lessening of prospects for conflict, not the influx of tens of billions in new weaponry.
How the U.S. approaches arming yet other countries in the Middle East, including Egypt, Israel, Qatar, Bahrain and more, will be closely watched as the Biden team has indicated a desire to rejoin the Joint Comprehensive Plan of Action (a.k.a. the Iran nuclear deal). Fueling regional arms races could make that more difficult.
Biden has also promised to reverse the Trump administration policy that transferred export oversight for semi-automatic and many other small arms to the Commerce Department, which ended Congressional transparency into such sales. Quick steps to return to the previous policy would also show his administration seeks a more responsible arms trade approach.
As the Obama presidency was nearing its end in late 2016 and early 2017, his administration held back on weapons sale to Saudi Arabia, Bahrain, and Nigeria that the Trump administration later moved forward. It will be promising if Biden renews concerns about arms sales to many regimes with highly problematic human rights records that Trump has supported, including to the Philippines (amongst a long list of countries).
Even more telling would be actions to again support the Arms Trade Treaty. An easy early first step would be for the Biden administration to retract the letter Trump sent to the United Nations in 2019 that denied legal obligations from the United States' 2013 signature. Further efforts to honor U.S. signature to the ATT, including to seek ratification of the treaty (as embedded in the 2020 Democratic party platform), may take longer but would also show U.S. dedication to again align itself with nearly all its allies in promoting global norms on responsible arms trade.
Jeff Abramson is a senior fellow at the Arms Control Association and manages the Forum on the Arms Trade
During the last three years, the United States’ approach to conventional arms sales has been characterized by its transactional nature and focus on short-term objectives. In this environment, the Trump administration has repeatedly challenged key tenets of U.S. arms transfer laws and policies, resulting in increased arms sales to countries of concern. At the same time, Congress has increasingly spoken out about U.S. arms sales decisions, leading to greater examination of and public discourse on the opportunities and, importantly, the risks presented by certain arms transfer decisions. Given these dynamics, the upcoming year presents an opportunity to reevaluate how the United States engages in the global arms trade and identify ways to ensure greater responsibility and accountability in U.S. arms transfer decisions in the years to come.
During the Trump administration, expediency, special interests, and perceived economic incentives have often come at the expense of long-standing approaches to U.S. arms transfer decisions. In the last year alone, the administration:
The political environment going into 2020 could present an opportunity to build on the attention and momentum of the past few years and embolden the American public and Congress to take more proactive steps to ensure proper oversight of and responsibility in U.S. arms sales. There are several avenues for improvement within the U.S. arms transfer policy framework, and actions taken this year could help lay the groundwork for establishing more robust, responsible, and accountable policies in 2021 and beyond.
In general, 2020 provides an opportunity to ensure that U.S. arms sales to foreign governments better align with those governments’ legitimate needs and capacities, as well as U.S. national security and foreign policy interests. For example, a recipient’s past behaviors could be taken into consideration when reviewing potential arms transfers in order to better safeguard human rights and mitigate potential harm. Additionally, Congress could pass legislation to restrict or prohibit future sales to countries such as Saudi Arabia and the UAE in light of the ongoing war in Yemen, as well as revise the procedures for considering and reviewing arms sales for all countries engaged in conflict. In addition, greater articulation and explanation of the Trump administration’s Conventional Arms Transfer Policy and implementation plan could help identify gaps in current policy and practice in order to better safeguard U.S. arms transfers. And finally, members of Congress could strengthen existing legislation by requiring the administration to report on potential violations of U.S. arms export laws. Such steps could ultimately serve to better inform the American public of the processes and risks involved in U.S. arms sales around the world.
Shannon Dick is a research analyst at the Stimson Center
Last year, Campaign Against Arms Trade (CAAT) won a legal victory against the UK Government in the Court of Appeal, which overruled a previous High Court judgment, and declared the government’s approach to evaluating export licenses for arms sales to Saudi Arabia to be “irrational and therefore unlawful.”
Criterion 2(c) of the EU Common Position on arms exports, which is also written into UK law (and therefore will likely remain after Brexit), states that an export license for military equipment shall not be issued if there is a “clear risk” that the equipment might be used to commit serious violations of International Humanitarian Law (IHL). CAAT had challenged the government’s continuing approval of export licenses for combat aircraft, bombs, missiles, and other equipment used in the Saudi-led war in Yemen, on the basis of the multiple, repeated attacks by the Saudi-led Coalition on civilians and civilian objects, documented by the UN and numerous NGOs with on-the-ground information, which CAAT’s lawyers argued surely meant a clear risk existed of further violations using UK weapons. The Government had argued that their close relationship with the Saudis, their knowledge of Saudi targeting procedures, and the training they provided, ensured that no clear risk existed; indeed, they had not made any assessment of the many hundreds of incidents of attacks on civilian targets of which they had been made aware, to decide if any of these were likely to be violations of IHL.
The judges ruled that any rational assessment of future risk must include as a crucial piece of evidence an assessment of past record. They ruled that the government must retake all extant export licensing decisions for equipment to the Saudi coalition, based on a lawful procedure. Until this review is complete, the government has agreed not to issue any new licenses for equipment that could be used in Yemen. The government has been granted leave to appeal to the UK Supreme Court, but has not been granted a stay of the judgment pending this.
There are therefore two major developments in this case to be anticipated in 2020: the Supreme Court hearing and judgment, and the results of the government’s retaking of export licensing decisions.
How the Supreme Court will view this case it would be pointless to speculate. As for the review of licensing, there are many possible outcomes, each of which might lead to different courses of action for those seeking to stop arms sales from fueling the Yemen war, and other conflicts worldwide. Some that come to mind include:
In the event of any outcome other than a complete halt to arms sales for use in the Yemen war, CAAT and other interested parties will need to look carefully at the basis on which the conclusions were reached – in so far as it is possible to know them – and consider whether there might be grounds for further challenge. On the other hand, any outcome that concludes that previous licenses should not have been granted, on the basis of the record of IHL violations (such as 4), could open the way to looking more closely at other cases where the UK has issued licenses for arms sales to conflict parties; for example, to Turkey during their conflicts with Kurdish forces in Turkey and Syria (though the issuing of new licenses to Turkey are currently suspended), or even to the US for components and subsystems used in their many ongoing wars around the world, including drone wars, where their observance of IHL is open to severe doubt.
Meanwhile, another legal effort to hold both governments and arms companies to account is under way in the Hague: on December 11, the European Center for Constitutional and Human Rights (ECCHR), in collaboration with Mwatana for Human Rights in Yemen, CAAT, Amnesty International, Centre Delás in Spain, and Rete Disarmo in Italy, submitted a 350-page Communication to the Office of the Prosecutor (OTP) at the International Criminal Court, asking the OTP to investigate both senior government officials in the UK, France, Germany, Italy, and Spain, and senior corporate officers of nine companies headquartered in these countries, for their potential criminal responsibility for aiding and abetting war crimes in Yemen through the supply of arms. This is a unique effort up to now, in seeking to establish the liability of corporate actors for their role in supporting war crimes through the supply of arms. The Communication challenges companies’ defense that they only supply arms where they have an export license on numerous grounds: for one thing, international principles on business and human rights expect companies to go beyond the minimum requirements of national legislation in seeking to prevent their business activities from having negative impacts on human rights, and this should be even more so in the case of the arms industry, whose products are designed to kill. Secondly, the granting of an export license does not entail an obligation to export, so that the company cannot evade responsibility to conduct their own due diligence; moreover, an export license may be valid for years, so that the situation at the point of delivery may not be the same as at the time the license was issued.
The file is now with the OTP. ECCHR and their partners hope that they will at the very least give the case serious consideration, and that this may even lead to the opening of a Preliminary Examination in 2020.
The road to any prosecutions would be a long one; however, so long as this file remains open, it may be hoped that the potential for personal criminal liability may have a cautionary effect on decision-makers in evaluating export decisions, whether from the government or corporate side, encouraging more rigorous scrutiny of whether there is indeed a “clear risk” of equipment being used for war crimes or other serious violations of IHL.
However, returning to the UK, there is one dark cloud on the horizon regarding CAAT’s efforts to hold the government’s export licensing policy to account through the courts. The Conservative Party manifesto for the election that returned the party and Prime Minister Boris Johnson to power for the next five years included a paragraph that has alarmed civil society and others concerned with the rule of law, promising to review the whole nature of the relationship between government and the judiciary, including restricting the possibility of seeking judicial review; this will still be possible for individuals whose rights are trampled by an “overbearing state,” but not as a way of “conducting politics by other means.” This is probably primarily aimed at the sort of case that saw Boris Johnson’s prorogation of Parliament struck down in a scathing ruling by the Supreme Court in September, but may well also target cases such as CAAT’s.
On the other side of the Atlantic, in the Canadian province of Ontario, right-wing Conservative Premier Doug Ford passed a similar law in 2019, the Crown Liability and Proceedings Act, severely restricting the ability of Ontarians to sue the Provincial Government. Moreover, the law applies retroactively, and on the basis of this, the Ontario government is seeking to have eight previous class action suits against it – which the government had already lost, through all stages of appeal – thrown out. Given the Johnson government’s track record in terms of its respect for the rule of law (or lack thereof), it is not hard to imagine them pursuing a similar course in the UK, in spite of its flagrant violation of constitutional norms.
Could the UK government, if it loses in the Supreme Court, still try to have the case canceled by such means, and allow arms sales to Saudi Arabia to continue even after they have been shown to violate the UK’s arms export laws? We can only hope not, but it is not something that can be ruled out.
Sam Perlo-Freeman is research coordinator for the Campaign Against Arms Trade.
The "should" in the title to this post is not an admonition, but rather a prediction. And a bold one. An impeachment effort is now underway related to conditions placed on security assistance to Ukraine. Plus, four Presidential vetoes were used in 2019: one to stop Congressional assertion of war powers in relation to the war in Yemen, and three to override rejection of "emergency" arms sales primarily intended to Saudi Arabia for that war. So, how could arms trade issues take an even greater public stage in 2020?
It's the election. As the 2020 campaigns kick into full gear, we should expect that those vying for the highest elected office will look for more areas where they can assert their differences with the President, especially on issues that the public supports. As the Forum's research into candidates positions is showing, there is a stark divide emerging in the approach Democratic candidates are taking on arms trade issues compared to Donald Trump. And opinion polling suggests many of these have a majority of Americans behind them.
At this moment, the divide is most striking as relates to support to Saudi Arabia. Of the seven Democratic candidates slated to appear in the December debate, six have indicated that they would cut off arms supplies to Saudi Arabia given Riyadh's behavior in the war and humanitarian crisis in Yemen. (Tom Steyer's position is unclear.) While public opinion polling highlighted by the Chicago Council of Global Affairs indicates that Americans are divided on the US relationship with Saudi Arabia, a majority, regardless of party, do believe selling weapons makes the United States less safe. It is easy to see, and unfortunately tragic to predict, that another incident of misuse of US weapons by the Saudis will occur and make it into the headlines. With it will come attention again to US arms trade decisions.
Also at odds with the President, all the Democratic candidates have indicated their support for an assault weapons ban, another issue that has majority public backing. Thus far, however, Democratic candidates have not made the connection that it is illogical to oppose assault weapons at home while at the same time making their export more efficient. While the administration is pushing for just such changes, it is easy to expect more gun control-minded Democratic candidates to make the case that the Commerce Department is not the proper home for oversight of assault weapon exports. Two have done so thus far. As some members of Congress are already doing, candidates can also make the connection to US gun laws and exports with violence in Latin America that fuels Central Americans to flee north. We quickly then link to the wall and broader immigration debates, driving the arms trade into the brighter spotlight.
It's a bit more difficult to predict that the Arms Trade Treaty (ATT) itself will become an election issue. President Trump's repudiation of the treaty at an NRA convention in Indianapolis in April certainly was popular with the crowd there and echoed the ill-informed stance that Congressional detractors have taken that the treaty infringes on US rights. It would not be surprising that candidates who publicly criticize the NRA would also then take up the ATT. Three have explicitly supported the treaty thus far, and a number others have taken steps in the past to block opposition to it.
Candidates seeking to distinguish themselves from each other may also branch out into issues where positions have yet to be claimed. Public opinion polling shows that a majority of Americans are strongly or somewhat opposed to using lethal autonomous weapons systems in war (aka killer robots). This is an obvious area where a candidate such as Andrew Yang, who comes from the tech field and talks frequently about artificial intelligence, could be the first to also acknowledge where human-centered limits make sense and support efforts such as those led by the growing Campaign to Stop Killer Robots to ban the development and use of such weapons.
Other issues ripe for candidates to explore include declarations on the use of explosive weapons in populated areas, an initiative with increasing international attention that currently lacks US diplomatic support. Treaties such as the Mine Ban Treaty and Convention on Cluster Munitions, that are supported by nearly all of NATO and other traditional US allies, but to which the US has yet to commit, can also provide candidates a way to distinguish themselves.
It is, of course, much too early to predict who will be elected as president roughly 11 months from now. It is, however, a much safer bet that arms trade issues will have a prominent role in the public discourse that leads up to the November 3 vote.
Jeff Abramson is a senior fellow at the Arms Control Association and manages the Forum on the Arms Trade.
The odds may at first appear to be against greater restraint in U.S. arms sales in 2019 given a president who loudly touts the supposed economic benefits of weapons sales and refuses to reconsider arms transfers to Saudi Arabia despite (1) the Saudi role in the devastating humanitarian crisis in Yemen and (2) a global outcry over the ghastly embassy assassination of U.S. resident Jamal Khashoggi. But a close examination of Congressional action, much of it building over the last three years, reveals real prospects for limiting the president’s dangerous approach on conventional arms trade.
The most high profile signs of this restraint revolve around the most high profile U.S. arms purchaser, Saudi Arabia. A loud rebuke of Trump’s approach to the kingdom came in December when a bipartisan group of 56 Senators took the highly unusual step of using the 1973 War Powers Resolution to direct the president to end U.S. military action in the war in Yemen, including any refueling to the Saudi-led coalition. An earlier vote in March garnered only 44 votes. The outcry over Trump’s unabashed arms support to Saudi Arabia played a large role in changing many Senators’ minds.
Another War Powers-based resolution should expect to win Senate approval in the new Congress, when it is re-introduced. In the House, the new Democratic majority would also be likely to approve such a resolution. While leader Nancy Pelosi (D-California) has yet to indicate when a such a measure might be brought forward, she is one of 101 co-sponsors of the previous House version, which was blocked by a late procedural action in December.
The War Powers Resolution came on the heels of steps more explicitly addressing the arms trade. In June 2017, 47 Senators voted to block more than $500 million in precision-guided munitions (PGM) sales to Saudi Arabia; and in September 2016, 27 Senators supported stopping a $1 billion tank sale. While neither of these measures were successful, they indicate the building Congressional opposition to unrestricted arms sales to Riyadh. That sentiment was encapsulated after the recent War Powers vote when co-sponsor Chris Murphy (D-Connecticut) said that “momentum is…only growing. Congress has woken up to the reality that the Saudi-led coalition is using U.S. military support to kill thousands of civilians, bomb hospitals, block humanitarian aid, and arm radical militias.”
In addition to these very public votes, some Congressional leaders are acting in other ways to reign in unwise arms sales. Under the U.S. system, leaders within the Senate Foreign Relations Committee and House Foreign Affairs Committee are pre-notified of potential arms sales. That pre-notification period has been the more traditional place for an opposition hold on controversial sales. For a period in 2017, former SFRC chair Bob Corker (R-Tennessee) declared a hold on new arms sales to Gulf Cooperation Council countries. More recently, ranking member Robert Menendez (D-New Jersey) placed a hold on PGM sales to Saudi Arabia and the United Arab Emirates. While Corker is no longer in Congress, Menendez retains his position and his June 2018 hold remains in place. During the recent War Powers debate, he argued that the Trump administration view of the U.S.-Saudi relationship was “unhinged” in thinking that “selling weapons to the Saudis was more important than America’s enduring commitment to human rights, democratic values, and international norms.”
These actions are promising, and creative Congressional leaders have the opportunity to do more. While the public can be an ally for responsible action on Foreign Military Sales (FMS) because such government-to-government negotiated sales are quickly added to a public website, the increasingly important business-led Direct Commercial Sales (DCS) are not as transparent, in part because any public notification often comes after the initial review period has passed. Congressmembers could insist that, or possibly take it upon themselves to make, these potential DCS transactions public immediately. Saudi PGM sales, for example, have come through the DCS process and relied upon concerned leaders to share in raising awareness.
While the notification period garners the most attention, Congress also can block a sale up until weapons are delivered. Given how security, geopolitical, and humanitarian realities can change between the time of notifications and often years-later deliveries, leaders should follow the entire process. To the best of my knowledge, however, the relevant chair and ranking committee members have only once used the power they gave themselves to receive from the State Department a notification of an arms shipment at least 30 days prior to its delivery. It’s time to exercise, and to expand, such authority (see Section 201).
In general, transparency around arms deliveries remains too obscure as a New Hampshire NPR reporter recently discovered. When U.S. Census export data showed weapons worth more than $61 million were sold from his state to Saudi Arabia in August, he could not uncover what was in the sales nor which companies provided the weapons. Annual reports on U.S. arms transfers have grown increasingly opaque. Congress should mandate a change, demanding much greater transparency on the specifics of what is in U.S. weapons deliveries.
Finally, sometime in the first quarter of this year, we can expect the administration to publish final rules transferring export authority on select firearms from the State Department to the Commerce Department, despite a large number of negative public comments and great deal of concern. These rules have been at the heart of the 3-D gun printing controversy that energized public debate in the middle of last year. Members of Congress have raised an alarm that they will lose notifications about these sales, and need to be prepared to stop, or counteract, this dangerous export process change. Just as Trump’s broad approach on arms sales does, these changes risk making it easier for weapons to end up in the hands of terrorists, international criminals, and abusive regimes as well as further undermine the promotion of human rights norms that should be central to U.S. actions.
Jeff Abramson is a non-resident senior fellow at the Arms Control Association and manages the Forum on the Arms Trade.
The war in Yemen has killed over 57,000 people since March 2015 and created a cholera epidemic and a politically induced, entirely preventable famine. The Saudi-led coalition is causing twice as many civilian casualties as all other forces fighting in Yemen – including the Houthis, who are also responsible for attacks on civilians and on aid and humanitarian actors. Primary support for the Saudi-led coalition comes from the USA; but a crucial junior partner is the UK. The UK government claims to have been at the forefront of international humanitarian assistance, giving more than £570 million to Yemen in bilateral aid since the war began. Yet the financial value of aid is a drop in the ocean compared to the value of weapons sold to the Saudi-led coalition – licences worth at least £4.7bn have been granted to Saudi Arabia and £860m to its coalition partners since the start of the war.
Rejecting responsible action
The UK’s own rules state that it cannot sell weapons to countries where there is a clear risk they might be used in serious violations of international humanitarian law. And the UK claims, repeatedly, to have one of the most rigorous control regimes in the world. Yet evidence of illegal civilian harm in the war is ongoing and growing.
So how does the UK government try to convince itself and others that its arms export policy is not in tatters? First, by batting away extensive evidence of violations of international humanitarian law, claiming it can't be sure they have happened. Despite a risk-based arms transfer control framework that is explicitly preventive in orientation, the UK government demands absolute certainty that its weapons have been misused before it will countenance a suspension – and even then, concerted action to stop weapons sales is not guaranteed. Second, by working with the Saudis to claim that if attacks on civilians have happened, they must have been a mistake. Central to this has been the Joint Incidents Assessment Team (JIAT) – headed by a Bahraini military lawyer who oversaw national security trials of over 300 pro-democracy protestors in 2011. The JIAT has investigated only a small proportion of alleged incidents, and its methodology, sources and case selection criteria remain unclear. Its conclusions have taken the form of blanket denial; admission of limited, accidental civilian harm; and most frequently, a defence of air strikes that it says were carried out in line with IHL. All of these responses are contested by NGOs tracking civilian harm in the war. And third, that any past misuse of weapons doesn’t necessarily mean future misuse is likely. In the judicial review of export policy, a senior civil servant’s evidence stated that “Past behaviour is a helpful indicator of attitude towards IHL and towards future behaviour, but it is not necessarily determinative”. It is difficult to imagine civil servants or High Court judges articulating such a position if they were working in counter-terrorism policy, an issue area that operates on the basis of suspicion, intuition and an absence of evidence.
In these three ways, according to the UK government, while there may be a risk of weapons being misused in Yemen, that risk is not clear. The upshot is an exponential rise in arms sales since the war started, to the point where Saudi Arabia now accounts for almost half of UK arms exports.
Nonetheless, there may be glimmers of hope for an end to the war in Yemen. The murder of Jamal Khashoggi has generated a crisis in US and UK policy that four years of war have failed to do. While his murder has little to do directly with arms sales, and it is dispiriting that four years of evidence of the misuse of weapons has failed to register in US and UK policy, it has shone a spotlight on the war in Yemen. Pre-talk consultations in Sweden between representatives of the government of Yemen and the Houthis ended on 13th December with an agreement that included a ceasefire in Hodeidah, steps to address the situation in Taiz, and prisoner exchanges. These are tentative, fragile steps that would mitigate civilian harm if adhered to, but still need considerable political effort to translate into an end to the war.
The US Senate has passed two resolutions to halt US involvement in the war and curtail its support for Saudi Arabia – a significant development. The US government has called for ceasefire – which sounds positive but may also be a move to block more radical action from Congress. In the UK, FCO Minister for the Middle East Alistair Burt appeared not to know the US was going to make that call. The UK is making increased efforts to address the humanitarian effects of its own support for the coalition by introducing a draft UN Security Council resolution – but this has been blocked by the US. Domestically, a former defence attaché to Riyadh spoke out about UK complicity through its arms sales in October 2018 – the first acknowledgement of the recklessness of UK policy from the military establishment. And a judicial review of UK policy is ongoing: the High Court found in favour of the government in July 2017, but Campaign Against Arms Trade has been granted an appeal, which will be heard in April 2019.
These moves illustrate the ways that the UK government has been forced to expend greater energy in justifying its position, working with the Saudi-led coalition to engage in legitimation work, and devote greater resources to the aid response. Looking forward to 2019, the major milestone for British policy on the horizon is the judicial review appeal. Will the Court of Appeal show greater independence from the government than the High Court? What new justifications will the government roll out? Watch this space.
Anna Stavrianakis is a Senior Lecturer in International Relations at the University of Sussex.
The Trump administration recently released its National Security Strategy (NSS), presenting the administration’s broad priorities for confronting global security challenges. Among other things, the strategy reflects Trump’s “America First” approach to U.S. engagement in the world and, with that, a focus on economic concerns. One subtle but important implication of such a focus will be the impact on U.S. conventional arms transfer policies and how the administration uses arms sales as a tool to support U.S. national security policy priorities and foreign policy ideals.
The NSS references conventional arms transfer-related issues in three specific instances: twice in discussion about renewed capabilities and once in discussion about approaches to regional security in Africa. The inclusion of conventional arms in the NSS, however, reflects larger themes of investing in U.S. industry, facilitating exports, and reducing restraints.
Indeed, references to conventional weapons in the NSS reflect the administration’s emphasis on augmenting U.S. military capabilities and bolstering the defense industry. In one instance, for example, the NSS highlights military modernization as a means to reinforce the United States comparative advantage in the global market for security and influence.
MODERNIZATION: Ensuring that the U.S. military can defeat our adversaries requires weapon systems that clearly overmatch theirs in lethality. Where possible, we must improve existing systems to maximize returns on prior investments. In other areas, we should seek new capabilities that create clear advantages for our military while posing costly dilemmas for our adversaries. We must eliminate bureaucratic impediments to innovation and embrace less expensive and time-intensive commercial off-the-shelf solutions. Departments and agencies must work with industry to experiment, prototype, and rapidly field new capabilities that can be easily upgraded as new technologies come online.
As part of the effort to “renew capabilities,” the NSS also prioritizes easing processes and procedures for U.S. defense industry – particularly with regard to supporting weapons exports.
ENCOURAGE HOMELAND INVESTMENT: The United States will promote policies and incentives that return key national security industries to American shores. Where possible, the U.S. Government will work with industry partners to strengthen U.S. competitiveness in key technologies and manufacturing capabilities. In addition, we will reform regulations and processes to facilitate the export of U.S. military equipment.
At the end of the NSS, the administration does draw attention to the negative consequences of irresponsible and illegal arms transfers in its discussion of various security concerns in Africa.
MILITARY AND SECURITY: We will continue to work with partners to improve the ability of their security services to counter terrorism, human trafficking, and the illegal trade in arms and natural resources. We will work with partners to defeat terrorist organizations and others who threaten U.S. citizens and the homeland
Overall, however, the NSS emphasizes the economy of arms sales and the benefits to be had from more investment in and export of U.S. military equipment. Yet such an approach to arms transfer control policies – that is, one that reorients the focus of U.S. policy to the competitiveness of U.S. defense companies – may overlook other fundamental tenets of U.S. policy governing weapons sales, such as the potential risks to civilian lives and human rights.
Before the NSS’s release, the Trump administration had already demonstrated a willingness to ease restrictions on certain international arms sales. In June, for example, the Trump administration approved the transfer of precision-guided munitions to Saudi Arabia despite concerns about civilian casualties. The weapons deliveries were originally blocked in December 2016 due to mounting concerns about the Saudi-led air campaign in Yemen, and the heavy toll that airstrikes placed (and continue to place) on civilians. In August, Trump reversed course on an earlier decision to halt the sale of attack aircraft to Nigeria due to known human rights abuses. And in September, the administration approved a multi-billion-dollar arms sale to Bahrain that had previously been conditioned on improvements in the country’s human rights record – improvements that arguably have not been met.
In the end, the Trump administration’s approach to conventional arms transfers may result in more weapons sales to a wider array of actors. While such an approach may support industry’s bottom line, it could also present a number of challenges to longer-term security and foreign policy considerations.
Shannon Dick is a research associate in the Managing Across Boundaries Initiative at the Stimson Center and a Forum-listed emerging expert
Less than one year into the Trump administration, it is clear that the United States is unlikely to provide positive leadership in promoting responsible arms trade and weapons use. While the Obama administration certainly did not shy away from arms deals, it did sign the Arms Trade Treaty and withhold some arms transfers due to human rights concerns. What restraint Obama showed, Trump has jettisoned, evidenced in arms sales notifications of precision-guided munitions (PGMs) to Saudi Arabia in May, F-16s to Bahrain in September, and Super Tucanos to Nigeria in August – all deals that Obama had put on hold.
Further under Trump, drone use/air strikes have dramatically increased in number and/or in numbers of civilians harmed. The Defense Department has backed away from a policy that would have barred the use of certain cluster munitions, in particular older ones with an awful record for humanitarian harm. The administration also appears set to make it easier to sell small arms by transferring their control to the Commerce Department, completing the last steps of a controversial export reform initiative. In December, the United States abstained on the annual UN General Assembly resolution supporting the ATT, saying during First Committee that it was reviewing its policy. These and other indicators suggest that US arms use and trade, as well as any eventual new US conventional arms transfer policy, will simply remove the concept of restraint and further undermine commitment to and promotion of human rights.
This is an admittedly bleak initial picture, but there are many places the world can and should look for leadership outside of a US administration espousing an “America First” world view. Perhaps surprisingly, the first place to look is the US Congress. The close 47-53 Senate vote in June in opposition to the PGM sale to Saudi Arabia is an indicator that the Senate could take a more proactive role, especially if the rumored additional $7 billion in PGM sales come before it. Republican Senator Rand Paul and Democratic Senator Chris Murphy partnered on that work and together or separately merit watching in 2018. So too does Republican Senator Todd Young, especially in relation to the humanitarian situation in Yemen. Democratic Senators Dianne Feinstein and Patrick Leahy reacted quickly to the cluster munition policy reversal, and along with Senate Foreign Relations Committee ranking member Ben Cardin have identified the need for Congressional involvement in any changes that would send small arms to Commerce control. A number of members of the House of Representatives have also taken up US weapons sales and use. A short list includes Democrats Ro Khanna, Mark Pocan and Republican Walter Jones, who co-wrote a New York Times oped critical of US support to Saudi Arabia, as well as Republican Justin Amash, and Democrat Ted Lieu, who has long expressed concerned about potential US complicity in war crimes.
Arming Saudi Arabia, or rather a commitment not to do so is also an appropriate litmus test on international leadership as the Saudi-led coalition continues to use weapons to the detriment of civilians in Yemen. In 2017, the European Parliament again called for an arms embargo on Saudi Arabia -- a call not heeded by suppliers such as France and the United Kingdom, but one other European countries can and do support. Related, Sweden’s pending “democracy criterion” in arms sales is worth watching for an impact nationally and regionally. So too is Japan’s leadership of the Arms Trade Treaty for the 2018 Conference of States Parties, where thus far countries have frustratingly refused to directly address the inconsistency of arming the Saudis.
The recent conclusion of the Treaty on the Prohibition of Nuclear Weapons, and awarding of the Nobel Peace Prize to the international civil society coalition that fought hard for the treaty (ICAN), draws global attention to the truth that leadership need not come from the normal “big players.” Those countries, led by the permanent five members of the Security Council (P5), tend to put traditional state-centered security over the needs of individuals (aka human security). But human security is at the heart of the nuclear ban treaty and a host of other successful treaties and initiatives broadly classified as “humanitarian disarmament.” On key treaties in this realm, Nicaragua is taking on the presidency of the Convention on Cluster Munitions. Afghanistan will have leadership of the Mine Ban Treaty. They have the potential to bring a different type of leadership to arms-related issues in 2018. So too do some of the countries that were at the heart of the nuclear ban treaty, such as Mexico and New Zealand, who were also progressive voices during the Arms Trade Treaty negotiation.
The Nobel Peace Prize also reminds us that civil society campaigns play a critical role. In 2018, the Campaign to Stop Killer Robots will continue calling for all countries to ban the development of fully autonomous weapons (“killer robots”). The countries participating in the Convention on Certain Conventional Weapons (CCW) working group may choose that path, which a growing number (22) are supporting. Leading roboticists and artificial intelligence experts are banding together with that message and writing letters to governments, spurring national parliamentary debates. In another campaign, the International Network on Explosive Weapons is helping to build momentum to address and end the practice of using explosive weapons with wide area effects in populated areas. These weapons are particularly devastating to civilians and civilian infrastructure, causing both immediate harm at the time of use and ongoing suffering from the disruption of economic and social activity.
Members of industry and the financial sector will also have the opportunity to display leadership. Late in 2016, German arms manufacturer Heckler and Koch announced that it would no longer sell weapons to undemocratic and corrupt countries. More recently in Japan, four banks and insurance companies recently announced that they would ban investments in cluster munition producers, joining a growing group that have made similar commitments in other countries.
While the future is always difficult to predict, in 2018 it would be wise to look outside the White House for leadership on proper restraint in the use and sale of weapons – without which, we can unfortunately foresee new suffering by civilians and the undermining of their human rights.
Jeff Abramson is a non-resident senior fellow at the Arms Control Association.
The "Looking Ahead Blog" features comments concerning short- to medium-term trends related to the arms trade, security assistance, and weapons use. Typically about 500-1000 words, each comment is written by an expert listed on the Forum on the Arms Trade related to topics of each expert's choosing.
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